Opinion
March 17, 1969.
June 12, 1969.
Criminal Law — Counsel for defendant — Dual representation by counsel — Failure to show actual conflict of interest — Failure to allege inconsistent defenses available to either defendant.
Submitted March 17, 1969.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 132, Oct. T., 1969, from order of Criminal Courts of Centre County, June T., 1966, Nos. 176 and 181, in case of Commonwealth of Pennsylvania v. Thomas A. Butler. Order affirmed.
Petition for post-conviction relief.
Order entered granting leave to appeal nunc pro tunc, opinion by CAMPBELL, P.J. Defendant appealed.
Charles J. Weyandt, for appellant.
Charles C. Brown, Jr., District Attorney, for Commonwealth, appellee.
Order affirmed.
Appellant maintains that he was improperly represented at his guilty plea hearing because his attorney also represented his co-defendant who likewise pleaded guilty.
Appellant fails, however, to maintain that a defense was available to him which was inconsistent with the position taken by his co-defendant.
The principles governing this case are supplied by Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962) and Commonwealth v. Resinger, 432 Pa. 398, 248 A.2d 55 (1968).
In Whitling, the Court stated that "If, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such a conflict vitiates the proceedings, even though no actual harm results." Throughout the cases following Whitling, and most recently in Resinger, this has been interpreted to mean that a defendant must show an actual conflict and only the potential of harm ensuing therefrom. Here, appellant has failed to demonstrate that there was an actual conflict between his representation and that of his co-defendant, insofar as he does not allege that inconsistent defenses were available to either. Cf. Commonwealth v. Wilson, 429 Pa. 458, 463, 240 A.2d 498 (1968).